An Amin Commissioner cannot be appointed to ascertain possession as it amounts to collection of evidence, which is impermissible under Order 26, Rule 9 of the CPC. Additionally, a plea of adverse possession by a defendant serves as an indirect admission of the plaintiff's title.

JUDGMENT

Date of hearing : 06.02.2024 / date of judgment :21.03.2024

A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment.

2. The appellant of this 2nd appeal was the sole plaintiff before the trial court in the suit vide T.S. No.15 of 1989 and he was the respondent before the 1st appellate court in the 1st appeal vide T.A. No.15 of 1994.

3. The respondent of this 2nd appeal was the defendant before the trial court in the suit vide T.S. No.15 of 1989 and he was the appellant before the 1st appellate court in the appeal vide T.A. No.15 of 1994.

4. The suit of the plaintiff(who is the appellant in this 2nd appeal) before the trial in the suit vide T.S. No.15 of 1989 against the defendant(who is the respondent in this 2nd appeal) was a suit for permanent as well as mandatory injunction.

5. The case of the plaintiff against the defendant before the trial court was that, the suit property is Plot No.779/ 2013 ‘Gharabari’ H0.008R under Khata No.307/55. According to the plaintiff, one Krushna Chandra Mahapatra of village Gumagarh was the sole owner of the suit Plot No.779 for an area H0.010R under Khata No.43 in Mouza Gumagarh and the said property was recorded in his name exclusively in the settlement and as such, Krushna Chandra Mahapatra being the exclusive owner of the Plot No.779 under Khata No.43, he was possessing the same exclusively. That, Krushna Chandra Mahapatra sold the suit land, i.e., H0.008R out of H0.010R to the plaintiff by executing and registering a sale deed on dated 28.07.1987 bearing Sale Deed No.196 and delivered possession thereof. Subsequent thereto, the suit land was demarcated by the Amin, on which, the plaintiff laid foundation work for construction of a house. After transferring the suit land to the plaintiff, his vendor, i.e., Krushna Chandra Mahapatra filed a mutation case before the Tahasildar-Kandhamal for mutation of the suit land in favour of the plaintiff and accordingly, the Tahasildar-Kandhamal mutated the suit properties to the name of the plaintiff and after mutation, the suit properties were recorded in separate Khata vide Khata No.307/55 and Plot No.779/2013 in the name of the plaintiff exclusively and as such, the plaintiff has been paying the rent of the suit properties to the Government in his name regularly and he (plaintiff) has been obtaining the rent receipts thereof. The defendant is a rowdy nature man and he(defendant) requested plaintiff for selling the suit properties to him. When the plaintiff did not accept the said proposal of the defendant to sale the suit properties, then, the defendant forcibly started installing Medha fence around the suit land, to which, the plaintiff protested, for which, the defendant tried to assault him (plaintiff). Accordingly, the defendant without having his any right, title and interest over the suit properties created disturbances in the possession of the plaintiff over the suit properties, for which, apprehending the breach of peace, he (plaintiff) filed the suit vide T.S. No.15 of 1989 against the defendant praying for restraining the defendant permanently from interfering into his possession over the suit properties and for removing of the medha fence from the suit land along with other relief (s) to which, he (plaintiff) is entitled for, as the court deems fit and proper.

6. Having been noticed from the trial court in the suit vide T.S. No.15 of 1989 filed by the plaintiff, the defendant contested the same, denying the averments made by the plaintiff in his plaint by taking specific stands/pleas in his written statement that, he(defendant) has got his own plots vide Plot